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Distributed quarterly by mail and email, the Conservative Caucus of Delaware's newsletter contains relevant information and insights from noted leaders, authoritative stakeholders and like-minded members who demonstrate their passion for the truths we hold dear by putting pen to paper!


Court's Decisions Wrong   

For  U.S.


     Pundits, Politicians, Advocates, and Columnists have already expressed a myriad of opinions on the Supreme Court decision, Obergefell, et al. v. Hodgers, et al., 576 U.S. __ (2015), the 5-4 decision which imposes “same-sex marriage” on the States. According to the Majority, “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

     The Fourteenth Amendment was adopted on July 9, 1868 as one of the Reconstruction Amendments. There are five Sections to the Amendment; the most commonly cited in judicial decisions is Section One. It states that, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

     The first interpretation of the Fourteenth Amendment was in the Slaughterhouse Cases in 1873. At the time, the Supreme Court held that the basic civil rights and liberties remained under the control of state law. Further, throughout the 19 th century, the Fourteenth Amendment was used in an economic context and to support state segregation. Following World War II, the Supreme Court began to broadly interpret the Fourteenth Amendment, especially the Due Process Clause. It is the Court’s interpretation of the Due Process Clause in Griswold v. Connecticut (1965) where the “Right to Privacy” was created. This “Right to Privacy” was used to nationalize abortion through the Roe v. Wade (1973) decision. More recently, this “Right to Privacy” was also used to overturn state sodomy laws in the Lawrence v. Texas (2003) Case. 

     In the Lawrence case, Justice Scalia wrote in his dissent that if the Court was not prepared to validate laws based on moral choices as it had done in Bowers v. Hardwick (1996), state laws against bigamy, same-sex marriage, adult incest, prostitution, 



adultery, fornication, bestiality, would prove unsustainable. As the Obergefell decision shows, Justice Scalia’s predictions are proving true.  

     All the Dissents in Obergefell v. Hodges are critical of the Majority’s reasoning because there is no reasoning in this decision. There is no fundamental right to “same-sex marriage.” In all of human history, from ancient Mesopotamia to the Modern Day (until recently), no society has sanctioned “same-sex marriage.” This fact even includes the Greeks who institutionalized it for military purposes. And now, suddenly, it is a fundamental right because five people said it is.

     In his Dissent, Justice Scalia pointed out that it was Justice Kennedy, who wrote in United States v. Windsor (2013) that the “Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

     He continues that, “the Federal Government through our history has deferred to state-law policy decisions with respect to domestic relations.” Justice Scalia is clearly showing that Justice Kennedy is reversing himself. The Majority decision is illogical as it is arbitrary and capricious.

     Although “same-sex marriage” is the law, there is some hope. Several organization supporting traditional marriage are swiftly moving to push for the First Amendment Defense Act (FADA) in Congress; H.R. 2802 which was introduced on June 17, 2015 by Rep. Raul Labrador (R. Id). FADA would bar the federal government from imposing penalties on individuals, business, groups, and especially religious organization for refusing to participate in “same-sex weddings.” The bill would prohibit the IRS from revoking the tax-exempt status of non-profit organizations, like religious-orientated schools, which maintain traditional marriage views. This bill should pick-up increased support over the next few months. 

      Findlaw reports that the Texas Attorney General Ken Paxton called the Majority decision a “lawless ruling” and said “state workers can  

cite their religious objections in denying marriage licenses.” Paxton said, “’numerous lawyers’ stand ready to defend, free of charge, any public official refusing to grant one.” Texas Governor Greg Abbott said, “Texans can’t be forced by the court ruling to act contrary to their religious beliefs.”

 In King v. Burwell, 576 U.S. _ (2015), a Majority of the Court, in a 6-3 decision, held that the federal subsidies in the Patient Protection and

Af ordable Care Act (ADA) are available to individuals who purchased insurance though federal exchanges established by the Secretary of Health and Human Services (HHS). This again is the Court acting as a super legislature, attempting to re-write a statute and not interpreting it. The Majority’s decision, written by Chief Justice Roberts is, at times, difficult to read with a straight face.

     He writes that, “when read in context, the phrase ‘an Exchange established by the State under [42 U.S.C. Section 18031]’ is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could refer to all (Emphasis in original] Exchanges – both State and Federal.” Simply put, it’s difficult to accept the Majority’s interpretation. Justice Scalia, in writing for the Dissent, clearly states that, “[i]n order to receive any money under Section 36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State’.”

     He adds, “[y]ou would think the answer would be obvious-so obvious there would hardly be a need for the Supreme Court to hear a case about it.” “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of that present Court: The Af ordable Care Act must be saved,” wrote Justice Scalia

     Even though Obamacare has been successful at the Supreme Court level, this success has not damped the calls for repeal of the law. Nevertheless, the real problems for Obamacare are the compliance regulations, which will strangle the ability of hospitals and doctors to carry out basic care. Obamacare is unwieldy and unworkable; it will collapse under the weight of its own bureaucracy. And, there is nothing that the Supreme Court can do to save it then. 



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